Benicia mayor to request council to send letter encouraging rail safety
By Irma Widjojo, 04/06/15, 7:58 PM PDT
Benicia >> Mayor Elizabeth Patterson on Tuesday night will be asking the rest of the city council to consider sending a letter to the Federal Office of Management and Budget in support of several rail safety recommendations.
Benicia is a member of the League of Cities, which has adopted 10 recommendation as official policy to “increase rail safety in the transport of hazardous materials.”
The recommendations include mandating speed limits and electronically controlled braking systems, increasing the federal funding for training and equipment purchases for first responders, regulating the parking and storage of tank cars and others.
The League Executive Director has requested that cities send letters to the appropriate federal rail safety rule making authority requesting that these measures be implemented, Patterson said.
Patterson — an outspoken advocate of tougher crude-by-rail safety measures — said she has asked the city attorney to “determine whether sending a letter requesting rail safety improvements would in any way create a due process issue for the city,” since Benicia is currently processing the use permit and Environmental Impact Report for the Valero Crude by Rail project.
However, the city attorney determined that there would not be an issue since “the letter does not oppose the Valero project or take any position on adequacy of the environmental review for the project.”
In November, the city attorney released a legal opinion that states that Patterson should not participate in any decision concerning the project because “the appearance of bias” could result in a legal challenge against the city.
However, the mayor, who has hired her own attorney, at that time indicated she doesn’t intend to follow the city’s advice.
The council is set to meet at 7 p.m. Tuesday at City Hall, 250 E. L St. Agendas and staff reports can be found on the City’s website.
From The Benicia Herald(Benicia Herald letters appear only in the print edition) [Editor: Dr. Egan’s letter is a welcome contribution, expressing the growing conviction of many throughout North America, that crude-by-rail is simply unsafe under current conditions, and should be not be permitted at this time. See also Dr. Egan’s 9/14/14 comments addressing the Valero Crude By Rail Draft EIR. – RS]
Timely decision on crude by rail warranted: Deny Valero’s application
By James Egan, M.D., Benicia, March 10, 2015
The headline in the Feb. 5, 2015 edition of The Herald, “Another delay as crude-by-rail project debate enters 3rd year,” signals sympathy toward the Valero Benicia Refinery as regards its Crude by Rail (CBR) Use Permit Application, currently before the Planning Commission. While it is difficult working up crocodile tears for a multi-billion-dollar international oil corporation, the energy and expense invested in forwarding this project bear acknowledgement, and a timely decision on the application should be made out of fairness to the applicant. To that end, I would like to suggest that the Planning Commission and the City Council have enough information available to take action at any time. The application should be denied on the basis of rail safety.
On Feb. 17 of this year a crude oil train derailed and exploded in Mount Carbon, W.Va. Three million gallons of Bakken crude spilled from 26 ruptured tank cars, forcing the evacuation of two nearby towns. Two days prior, another oil train derailed and caught fire in Ontario, Canada. Last Thursday, March 5, 21 cars carrying Bakken crude derailed, split and exploded near Galena, Ill. Another of the dozens of oil- or ethanol-train accidents involving a fire, derailment or significant fuel spill reported in the U.S. or Canada since 2006 was the Lynchburg, Va. derailment and fire in April 2014.
The significance of this particular series of railway disasters to the citizens of Benicia is that they all involved CPC-1232 tank cars, the same cars that Valero would use for the transportation of crude to its facility in Benicia, according to the Draft Environmental Impact Report.
In a Feb. 23 editorial titled, “Get rid of exploding tank cars,” the San Francisco Chronicle states that “Valero Energy Co. has agreed to haul Bakken crude to its Benicia bayside refinery in the newer CPC-1232 cars as part of its city permit application to revamp its facilities to receive crude by rail rather than by oceangoing tanker. But that promise now appears inadequate to protect the safety of those in Benicia as well as in other communities – Roseville, Sacramento, Davis – along the line.”
The same edition of the Chronicle details a report from the Department of Transportation predicting that trains hauling crude oil or ethanol will derail 15 times in 2015 and average 10 times yearly over the next two decades, causing $4.5 billion in damage with potential fatalities of more than 200 people in a given accident. This may actually be an underestimate based on recent major derailment rates.
Friends and foes of CBR alike agree that the transportation of crude oil by rail involves inherent risk. Can’t we also agree that the risk should be reduced to the greatest extent possible before inviting these potentially explosive trains to Benicia? Lowering the risk of tank car derailment, rupture and explosion now should translate into saved human lives and prevention of environmental disasters in the future.
The danger can, in fact, be mitigated. The crude can be stabilized prior to its transportation by extraction of its most volatile components. North Dakota has implemented standards making this mandatory for Bakken crude, but many feel that their new guidelines are overly lax. New federal regulations due to be released in May could further address this, as would rail safety measures such as Positive Train Control and electronically controlled pneumatic brakes. New, safer tank cars designed specifically to carry this type of crude have been designed and are in production.
Unfortunately, the new federal guidelines will likely require years for full enforcement, and complete phaseout of the existing, unreliable tank car fleet by newer, stronger cars, such as the Greenbrier HM-251, will also require years of effort.
Accordingly, if we agree that the risks of transportation of crude by rail should be absolutely minimized prior to approving the CRB project, we have to acknowledge that this is currently beyond Valero’s reach and the Use Permit Application should be denied.
Those who would roll the dice and approve the current application should consider how comfortable they will feel with that decision once they find themselves in a front row seat at the Park/Bayshore railroad crossing watching fifty tank cars containing 1,470,000 gallons of potentially explosive crude rumble by on the same spur line that has seen derailment of five train cars since Nov. 4, 2013 (in addition to the two locomotives that derailed on Sept. 7, 2014 near the port).
Kudos to Planning Commission members for the time and energy spent on fairly evaluating this project. It would seem that as time has passed the correct path forward has become much clearer. At this point, the ongoing health and well-being of all Benicians should hold foremost importance in the decision-making process. Their protection is the least we can expect from our city government.
How crude-by-rail — and other debates — are censored
By Lois Kazakoff, January 2, 2015
When I wrote in November about how the mayor of Benicia was effectively muzzled from speaking about a pending city decision with nationwide importance, I thought the debate was over climate change. Now I learn the real concern is over democracy itself.
My Nov. 18 blog post concerned the City Council’s decision to make public an opinion on whether the mayor should be allowed to speak freely with voters about Valero’s application to convert its Benicia refinery to receive crude from the Baaken Oil Shale by rail. The decision is huge because fracking the crude is only profitable if the oil can reach refineries and the global market. Benicia’s refinery and port are key components to success.
Locally, Benicians and Californians living along the rail lines are fearful of train cars filled with the highly volatile crude rumbling through their communities twice a day. It’s a highly charged dispute that has drawn in Attorney General Kamala Harris, who chastised the city for only studying the effects on Benicia and not the effects along the entire rail line through California.
When the City Council voted to make public the opinion, written by an attorney hired by the city attorney, the decision was Mayor Elizabeth Patterson had overstepped her bounds.
Why? Because local politicians can advocate for new laws, but when they are holding a public hearing or ruling on a permit — acting more like judges than legislators — the permit applicant’s right to appear before an unbiased body trumps the legislator’s right to freely express an opinion.
Peter Scheer, the executive director of the First Amendment Coalition, writes in Sunday’s Insight section that this growing practice of advising City Council members to censor themselves is deleterious not just to political debate over important and engaging local issues but to democracy. By giving City Councils this dual role and then advising them to censor their own speech, we discourage civic participation on the concerns constituents care about most.
Repost from The Sacramento Bee [Editor: Don’t let the headline put you off – this is the most thorough analysis yet on the controversy in Benicia. Tony Bizjak does a good job presenting Mayor Patterson’s defense as well as the perspective of those who would silence her. – RS]
Benicia mayor’s public skepticism puts vote on oil trains in jeopardy
By Tony Bizjak, 11/23/2014
The hot national debate over crude oil train safety has taken an unusual twist in the Bay Area city of Benicia, where a blunt-talking mayor’s right to free speech is being pitted against an oil company’s right to a fair public hearing.
This summer, amid tense public debate over a Valero Refining Co. proposal to bring crude oil on trains to its Benicia plant, Mayor Elizabeth Patterson revealed that the city attorney had privately advised her that her frequent public comments about oil transport safety could be seen as bias against the Valero project.
The mayor said the city attorney advised her to stop talking about the oil trains and sending out mass emails containing articles and other information, and to recuse herself from voting when it came before the council.
Patterson, a longtime community planner and environmental activist, is refusing to step aside, saying she has a duty to share information with constituents about the city’s pivotal role in the crude oil debate, one of the biggest environmental fights in the state.
The situation in Benicia provides an unfolding civics lesson on the sometimes-surprising legal tightropes cities and public officials must walk when dealing with high-stakes issues. The trains in question would pass twice daily through downtown Sacramento and other Northern California cities en route to the Benicia refinery.
Patterson points out she has never said she would vote against the Valero project and said she hasn’t yet made up her mind. “I am providing information. I am letting people know what is going on,” she said. “We ought to be talking about this.”
But a recent legal analysis, commissioned by Benicia City Attorney Heather McLaughlin and released publicly by the city last week, says Patterson appears to have stepped over a little-known and somewhat fuzzy legal line that could land the city in court.
Valero, the city’s largest employer and owner of a sprawling 45-year-old refinery on a hillside over Suisun Bay, wants to begin receiving two 50-car oil trains a day sometime next year. Valero officials say the shipments will help keep the refinery competitive in a fast-changing oil industry by providing rail access to cheaper oil, instead of marine shipments from Alaska and foreign countries.
The success of the Valero refinery is important to Benicia. The taxes it pays fund nearly a quarter of the city government’s annual operating budget.
But the fast-growing crude-by-rail phenomenon is controversial. Several oil train explosions, including one that killed 47 people in a Canadian town, have prompted federal officials to call for improved safety regulations. The California attorney general and other state safety officials recently challenged Benicia to do a better job of studying the environmental and safety risks of the Valero plan.
Patterson was among the early voices on oil train safety issues, writing an opinion piece in March in a Bay Area newspaper calling on Gov. Jerry Brown to take immediate steps to protect public safety as the trains begin to roll. She also has been sending mass emails to constituents for more than a year with updates on the project, copies of news stories about crude oil issues, and Valero-related matters.
This spring, two council members asked the city attorney to look into whether Patterson was playing too much of an advocacy role. Mark Hughes, a former PG&E executive, and Christina Strawbridge, a business owner, said several constituents had asked them if the mayor’s comments were appropriate. Both told The Sacramento Bee they were not approached by anyone from Valero.
Hughes said the matter is not personal. Speaking at a council meeting last week, he said, “for anyone to think that this was a witch hunt … for bringing it up against the mayor is just wrong. I think the mayor knows that. It clearly was not an attempt to intentionally try to get her to recuse herself; it was an attempt to get some clarification.”
Strawbridge, also speaking at the council meeting, said she put materials together to bring to the city attorney “to find out if the city is in legal harm here because of our mayor and making these kinds of statements … I have had questions about how the mayor could continue to be unbiased in this situation.”
At issue, experts say, are the different legal roles council members play and how they are permitted to act when playing those roles. In California, elected officials can express opinions and advocate for outcomes when they are writing new policies or laws, or deciding how to spend the city budget, municipal law experts say.
But courts have ruled that local elected officials cannot speak out too forcefully prior to holding a hearing and vote on “administrative” or “quasi-judicial” issues, such as voting on a homeowner’s request for a variance or a company’s request for a permit to expand its business.
In those cases, legal experts say, the applicant’s right to have its request heard by an impartial, unbiased board trumps a board member’s right to express their opinion before the formal public hearing.
JoAnne Speers is a former general counsel to the League of California Cities who now teaches leadership ethics at the School of Management at the University of San Francisco. She said case law on the matter can trip up cities and elected officials.
“I feel for the mayor and elected officials generally,” she said. “It seems paradoxical with issues of great importance to their community, if they want to participate in the decision, they are subject to certain constraints.”
The question now in Benicia is whether the mayor’s writings and emails have crossed the legal line.
The attorney hired by Benicia to review Patterson’s public comments, Michael Jenkins of Manhattan Beach, also serves as legal counsel for several California cities. He concluded that a court likely would consider Patterson to have stepped over the line. He noted in his analysis, though, that there are not many court cases to use for guidance, and acknowledged he is offering the city of Benicia conservative advice.
“This is a close case,” Jenkins wrote in his report. “In our opinion, a court likely would find that Mayor Patterson’s oft-expressed skepticism about transportation of crude oil by rail evidences an unacceptable probability of actual bias. The evidence is sufficient to warrant her preclusion from participation in the decision.”
His conclusion was based on 17 of Patterson’s emails and on Patterson’s opinion piece in the San Francisco Chronicle, headlined “Governor must ensure rail tanker safety.” In that piece, she wrote that “crude-by-rail shipments in unsafe tank cars pose imminent danger” to rural communities, and asked, “How would the Suisun Marsh survive a potential spill, explosion and fire?” She did not mention Valero by name, nor did she expressly say she opposes crude-by-rail shipments.
Patterson said she has been sending such e-blasts to constituents for years on city topics. She estimates she has about 500 subscribers. Most of the blasts involve Patterson disseminating published articles, press releases and other people’s comments. One included a story from The Sacramento Bee in which Sacramento leaders accused Benicia of failing to fully acknowledge the risk of spills and fires from the Valero project.
Another email passed along an article about speakers at a meeting organized by project opponents, Jenkins said. Patterson followed that with an email containing a Southern California newspaper editorial disagreeing with Patterson’s Chronicle opinion piece, and accusing her of rushing to judgment on the crude-by-rail issue. Another Patterson email contains a report lauding Valero for its plant safety measures.
In determining that Patterson should not vote on the Valero project, Jenkins cited a 2004 Los Angeles appellate court case as most comparable to the Benicia situation. There, he said, a city planning commissioner wrote an article for his homeowners association expressing concerns that a project would have negative environmental impacts. The commissioner then voted to deny the project. The court ruled that his comments “gave rise to an unacceptable probability of actual bias.”
Patterson’s attorney, Diane Fishburn of Olson Hagel & Fishburn in Sacramento, countered that a 1975 California Supreme Court ruling suggests Patterson is within her rights in speaking her opinion. In that case, involving the city of Fairfield, a developer tried to have the mayor and a councilman barred from voting on his shopping center proposal because the mayor told the developer he was opposed to the project, and the councilman spoke against the project at public meetings.
The court stated that the shopping center project had major ramifications for the city, and that a “councilman has not only a right but an obligation to … state his views on matters of public importance.”
The Fairfield case “is right on point with Elizabeth’s situation,” Fishburn said.
Jenkins cited that Fairfield case, as well, in his report for Benicia, acknowledging it provides support for Patterson’s position. But he pointed out that the court noted that most of the Fairfield council members’ comments came during a political campaign, where, Jenkins said, “candidates should have the freedom to express their views.”
Valero officials did not respond to a request for comment.
Under city rules, the Valero permit request will be voted on by the city Planning Commission, and would only come before the City Council on appeal. If it does, legal experts and city officials say it is up to Patterson to decide whether she should recuse herself.
Patterson said she does not plan to step aside and that she will be able to cast an unbiased vote. “I am going to (continue to) do what I have been doing,” she said. “The challenge here is I have to be scrupulous in weighing the facts before me.”
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